The United Nations Convention on the Law of the Sea: The RisksOutweigh the Benefits

The Bush
Administration has renewed its 2004 request that the Senate ratify
theUnited Nations Convention on the
Law of the Sea (UNCLOS). While UNCLOS contains provisions that
would be marginally beneficial to the U.S. Navy, other provisions
of the treaty, such as those regarding the settlement of disputes,
royalties on the exploitation of resources on the deep seabed, and
the empowering of an additional U.N.-affiliated international
bureaucracy, pose far greater risks to U.S. interests. The United
Nations Convention on the Law of the Sea is likely to have
unintended negative consequences for U.S. interests. Nothing has
occurred since 2004 that should lead the Senate to reverse its
earlier decision to decline to take up the treaty.

UNCLOS has been a
contentious issue in the U.S. for a quarter of a century.
International negotiators completed drafting UNCLOS in 1982. It was
designed to establish a comprehensive legal regime for
international management of the sea and the resources it contains.
Among its sweeping provisions were several that pertained to the
rights of passage by both commercial and naval vessels. These built
on a series of 1950s-era conventions and were supported by the
Navy. President Ronald Reagan, however, refused to sign UNCLOS in
1982 because he did not believe, on balance, that the treaty served
U.S. interests.

In 1994, however,
the Clinton Administration sought and received a package of changes
in UNCLOS that it touted as correcting the problems that led
President Reagan to withhold his signature. President Clinton
signed the revised treaty and forwarded it to the Senate. The
record shows that the Senate was not convinced that the 1994
changes corrected the problems, and it has deferred action on the
treaty ever since.

Much to Lose, Little
to Gain

As a multilateral
treaty negotiated under the auspices of the U.N, UNCLOS poses the
usual risks to U.S. interests of such multilateral treaties. In the
international organizations created by such treaties, the U.S.
often faces regional, economic, or political blocs that coordinate
their votes to support outcomes counter to U.S. interests. The bloc
voting process is frequently driven by the same overtly
anti-American agenda that is often apparent in the U.N. General
Assembly. While the U.S. can achieve positive outcomes in these
forums, its successes are usually limited, having been watered down
or coupled with demands from other participating states that it
would otherwise not accept.

One example of
U.S. interests being thwarted by bloc voting is the new U.N. Human
Rights Council. The U.S. was a strong proponent of creating a new
body to replace the discredited U.N. Commission on Human Rights,
which had became a haven for human rights abusers to protect one
another from scrutiny and censure. Once locked into negotiations
over the specifics of the new council, however, the U.S. was
repeatedly outnumbered and isolated. As a result, the council has
minimal requirements for membership, and China, Cuba, Pakistan,
Saudi Arabia, and other repressive states have won council seats.
Unsurprisingly, the council has performed just as badly, if not
worse, as its predecessor, and the U.S. has declined even to seek a
seat on it.

Further,
U.N.-related multilateral treaties often create unaccountable
international bureaucracies. The UNCLOS bureaucracy is called the
International Seabed Authority Secretariat, which is headed by a
secretary-general. The Secretariat has a strong incentive to
enhance its own authority at the expense of state sovereignty. Thus
University of Virginia School of Law Professor John Norton Moore
describes this sort of treaty as a "law-defining international
convention." The law that is being defined and applied by
international bureaucrats is one designed to govern the actions of
the participating states, not to serve their joint interests. For
example, a provision of UNCLOS that would impose direct levies on
the revenues of U.S. companies generated through the extraction of
resources from the deep seabed reveals this bias against state
sovereignty.

When international
bureaucracies are unaccountable they, like all unaccountable
institutions, seek to insulate themselves from scrutiny and become
prone to corruption. The International Seabed Authority Secretariat
is vulnerable to the same corrupt practices that have been present
at the U.N. for years. The most pertinent example of this potential
for corruption is the United Nations Oil-for-Food scandal, in which
the Iraqi government benefited from a system of bribes and
kickbacks involving billions of dollars and 2,000 companies in
nearly 70 countries. Despite ample evidence of the U.N.'s systemic
weaknesses and vulnerability to corruption, the U.N. General
Assembly has yet to adopt the reforms to increase transparency and
accountability proposed by former Secretary-General Kofi Annan and
others. This example is particularly pertinent considering that the
Authority could oversee significant resources through fees and
charges on commercial activities within its authority and
potentially create a system of royalties and profit sharing.

Many U.N. bodies
suffer vulnerability to corruption, mismanagement, and abuse, and
the U.S. should be concerned about the protections in place to
prevent the occurrence of these ills in the International Seabed
Authority. The entire U.N. system should adopt strong, consistent
practices to increase transparency and accountability. Until that
happens, the U.S. should resist ratifying or acceding to any treaty
that relies on U.N. institutions, funds, or programs to interpret,
implement, or enforce its provisions.

The Bush
Administration's Unconvincing Arguments

The Bush
Administration is likely to counter the arguments regarding the
clear risks to U.S. interests posed by ratification of UNCLOS by
asserting that there are greater risks if the U.S. fails to ratify
the treaty. These arguments are unconvincing and easily
rebutted.

Assertion #1:
The U.S. needs to join UNCLOS to "lock in" the navigation rights it
currently enjoys under customary international practice.
Implied in this argument is the presumption that other nations, the
vast majority of which are UNCLOS participants, will ignore their
obligations under the treaty and forgo the concurrent privileges
regarding navigation rights afforded by customary international
practice just because the U.S. is not a party to the treaty. This,
according to the Bush Administration, will manifest itself in the
form of some coastal states demanding notification by U.S. ships
entering their waters or airspace.

Fact: These
states have reciprocal interests in navigation rights that will
discourage them from making such demands. Second, the few
irresponsible states that may decide to make such challenges are
not going to be dissuaded by the "locking in" argument or U.S.
appeals to the navigation provisions of UNCLOS.

Assertion #2:
U.S. companies will not take advantage of the economic
opportunities afforded by extracting natural resources from the
deep seabed unless the U.S. joins UNCLOS. UNCLOS supporters
have noted, in support of this assertion, that U.S. mining
companies have not undertaken extraction activities on the deep
seabed.

Fact: The
marginal legal protections afforded mining companies by U.S.
participation in UNCLOS are unlikely to change their calculations.
First, the efficient use of resources by private enterprise depends
on a legal regime that establishes strong property rights. The
relevant sections of UNCLOS are anything but clear regarding the
extension of such property rights. The treaty, even after the 1994
changes, describes deep seabed resources as the "common heritage of
mankind." This provision, at a minimum, leaves mining companies to
question the full extent of their property rights in the deep
seabed areas. Further, UNCLOS directs the International Seabed
Authority to take into account the interests and needs of
developing states regarding the exploitation of deep seabed
resources. This is a barrier to companies from the U.S. and other
states designated as developed. Finally, UNCLOS encourages
technology transfers from advanced mining companies to support
mining activities by developing states. This provision will
discourage companies from participating in mining activity under
the jurisdiction of the International Seabed Authority.

Assertion #3: U.S.
participation in UNCLOS will not undermine intelligence
operations.

Fact: It is
impossible to confirm this assertion because the relevant
intelligence activities are classified. It is clear, however, that
U.S. participation in UNCLOS is unlikely to facilitate U.S.
intelligence activities. For example, a coastal state may demand
that all submarines entering its exclusive economic zone surface
and identify themselves. Even if the U.S. were a party to the
treaty, the Navy would not invoke UNCLOS to justify its presence in
these waters when it engages in intelligence operations. Instead,
it would simply ignore the demand and avoid being caught. On this
basis, it is unclear how the U.S. intelligence community would
suffer by not joining the treaty.

Assertion #4:
The U.S can prevent decisions that are not in its interests.
UNCLOS created several governing bodies, of which the two most
important are the Council and the Authority. Supporters claim that
the 1994 Agreement on Part XI of UNCLOS puts the U.S. in a strong
position to block questionable propositions because of the
preference for consensus in many areas and the advantageous
position the U.S. would have if it joined the
organization.

Fact: While
the 1994 Agreement on Part XI of UNCLOS does state that, "As a
general rule, decision-making in the organs of the Authority should
be by consensus," in nearly all cases, decisions may be adopted by
a majority or two-thirds vote of members present and voting "if all
efforts to reach a decision by consensus have been exhausted." All
decisions in the Assembly are subject to this provision, and only
two types of decisions by the Council must be adopted by consensus:
decisions on the "protection of developing countries from adverse
effects on their economies or on their export earnings" resulting
from deep sea bed mining and decisions to adopt rules, regulations,
and procedures concerning "the equitable sharing of financial and
other economic benefits derived from activities [within the
jurisdiction of the Authority] and the payments and
contributions…taking into particular consideration the
interests and needs of the developing States and peoples" and the
prospecting, exploration, and exploitation of minerals and other
resources in the deep sea.[1]
As a member of the Council, the U.S. could, in theory, block
decisions in these two areas, provided it is willing to accept the
political and diplomatic consequences. By itself, however, the U.S.
could not stop other Council actions subject to a majority or
two-thirds vote.

Council decisions
could also be blocked by a majority of any of the five "chambers,"
or membership groups, of the 36-member Council. If it chose to
ratify the treaty, the U.S. would claim one of the four slots in
the chamber for industrialized countries and Russia, which is
guaranteed a spot as the Eastern European region country with the
largest economy. Considering the difficulties faced by the U.S. in
rallying support from Russia and Europe in the Security Council,
this mechanism may prove difficult to use to protect U.S.
interests. And while the U.S. could, in certain circumstances,
block Council actions by deviating from consensus, other countries
on the Council could just as easily prevent U.S.-supported actions
from being adopted. In sum, the U.S. could stop some detrimental
decisions if it chose to ratify UNCLOS, but that ability would be
sharply limited and would often bear diplomatic consequences that
many U.S. administrations would prefer to avoid.

Conclusion

The United States
should be wary of joining sweeping multilateral treaties negotiated
under the auspices of the United Nations. Indeed, the bar should be
set very high for U.S. participation in multilateral treaties
negotiated under the auspices of the United Nations. The United
Nations Convention on the Law of the Sea is no exception.
International bodies created by such treaties often lack proper
protections to prevent unaccountable behavior and corruption and
result in the U.S. being isolated by bloc voting led by countries
with an interest in limiting U.S. freedom of action and
sovereignty. The U.S. can rely upon customary international
practice to obtain many of the benefits of these treaties without
subjecting itself to the risks of joining them. For these reasons,
the Senate has been wise to defer consideration of the United
Nations Convention on the Law of Sea since it was submitted in
1994.

Edwin
Meese III is a Distinguished Fellow at The Heritage Foundation,
where he holds the Ronald Reagan Chair in Public Policy. Baker
Spring is F.M. Kirby Research Fellow in National Security
Policy in the Douglas and Sarah Allison Center for Foreign Policy
Studies, a division of the Kathryn and Shelby Cullom Davis
Institute for International Studies, and Brett
D. Schaefer is Jay Kingham Fellow in International Regulatory
Affairs in the Margaret Thatcher Center for Freedom, a division of
the Kathryn and Shelby Cullom Davis Institute for International
Studies, at The Heritage Foundation.

[1]The amended treaty also stipulates that
the 15-member Finance Committee, which is elected by the Assembly
but must include the five largest financial contributors to the
administrative budget "until the Authority has sufficient funds
other than assessed contributions to meet its administrative
expenses," must adopt decisions on "questions of substance" by
consensus. Because the budget is assessed based on the U.N. scale
of assessments for its regular budget, the U.S. would, at the
present, hold a seat on the Finance Committee and could
block decisions. However, the U.S. would not always be assured of a
seat on the Finance Committee, because the Authority hopes to raise
revenues from other sources in the future, which would overcome the
guaranteed-seats provision. Moreover, although the treaty instructs
the Assembly and the Council to "take into account recommendations
of the Finance Committee," it does not require them to adhere to
those recommendations.

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